delivered the opinion of the court.
The principal questions on this appeal are:
1st. Is the judgment of the probate court of Harrisburg county, awarding to Tabitha Harris, wife of David Harris, the land in controversy, conclusive in favor of her right to the same, and not subject to question or impeachment in a collateral action?
2d. Was the said Tabitha Harris, during the lifetime of John Jiams, deceased, and at the time of the grant of the land from the government of Mexico, to be regarded as his lawful wife, and entitled to the rights arising from the matrimonial relation?'
3d. Is the league of land, of which one-half was decreed to the said Tabitha by the probate court, community property, and, as such, divisible between the survivor and the heirs of the deceased partner of the marriage?
There are other questions of minor importance, relative to-evidence and prescription, which will be noticed before the conclusion of the opinion.
The first ground relative to the conclusive effect of the judgment of a probate court is one which will not, on the present occasion, be discussed to any extent, as the question is pending in other causes, and has not received the thorough investigation from counsel, or consideration by the court, due te the importance of the principles involved, or the immense amount of property to be affected by any general rules established in the decision.
*447In tills case it is clear that the court had jurisdiction of the subject matter and of the parties, and there are certainly no obvious grounds why, in relation to this decree, there should be an exception to the general rule that judgments, rendered in the exercise of a competent authority, are reversible only in an appellate court, and cannot, collaterally, be treated as a nullity. It is believed that the judgment cannot, in this suit, be disregarded on any of the grounds urged against its validity by the defendant; but the question would have been left open in this case had we not been satisfied that Mrs. Harris, independent of the judgment, is legally entitled to one-half of the league of land granted by the Mexican government to the deceased husband. [See 2 Howard’s U. S. Hep. p. 309; 10 Peters’ P. 473; 2 Peters, 165; 3 Peters, 204, 205; 1 Peters, 340; 6 Peters, 729,730; Duchess of Kingston’s Case (Smith’s Leading Cases), p. 424.]
The second question for examination is, whether Mrs. Tabitha Harris was, in legal contemplation, the wife of John Jiams at the time of the grant of the land from the government of Mexico.
It appears from the statement of facts and the depositions, that John Jiams, senior, was lawfully married in the state of Ohio, in the year 1809, to one Mary Ilaslett, and that they lived together as man and wife until 1818; that by his direction she then left his house and went to reside with his mother, and never afterwards returned to him; that after her departure from him he went down the Ohio river, and was gone some months, and afterwards returned to Jefferson county, Ohio; that shortly before his return the said Mary, his wife, went down the Ohio river, and it does not appear that they ever again met; that shortly after the return of the deceased he again departed down the Ohio river, and never afterwards returned to his former residence in Jefferson county; and that some months after his last departure the said Tabitha Harris, known then as Tabitha Kincaid, with two children of the said John Jiams, senior, and his wife, Mary, viz.: Pi chard Jiams and John Jiams, Jr., were, conveyed to the said John Jiams, senior, below Cincinnati, on the Ohio *448river, and that he, together with the said Tahitha and the two children, removed to Bayou Sara, in Louisiana, where they lived until 1822, when they removed to Austin’s colony in Texas, the said Richard having in the meantime departed this life; that the said John Jiams, senior, the said Tahitha and the said John Jiams, Jr., lived together on the league of land, the half of which is now in controversy, from the year 1822 until the death of said John Jiams, senior, in 1827; that the three children of the deceased and the said Tahitha, mentioned in the petition, were born after their arrival in Texas; that the family were duly received as colonists, which, at the time of the grant, consisted of the deceased, as the head, the said Tahitha, John Jiams, Jr., and such of the children of the deceased and the said Tahitha as were then born. An extract from the statistical census of Austin’s colony, compiled in March, 1826, by the empresario, in accordance with official orders, was offered in evidence, in which the said Tahitha ranked as the wife of the said John Jiams, deceased, and they were classed among the married men and women of the colony.
It appears from the depositions that the said Tahitha lived with her father about four miles from the residence of the said John Jiams, in the state of Ohio; that she was acquainted with him, but the witness did not know that she was acquainted with his wife; that the said Tahitha lived a short time in Jiams’ house before his removal, and that he acknowledged as the cause of his removal his apprehensions of penal consequence from his living with the said Tahitha, and also concerning his wife, Mary. But there is no evidence that the said Tahitha knew that this was the cause, or that she had any such apprehensions.
It further appeared from the deposition of witnesses, relatives of the said John Jiams, deceased, living near his former residence in Ohio, and with whom one of his children' remained, that Mary Haslett, his former wife, had not been heard of from the year 1818 until the taking of the depositions in 1847, nor is there any evidence of her existence subsequent to the former year.
From this evidence, it appears that at the time of the *449family’s emigration to this country, all knowledge of the existence of the former wife had, for four years, been lost. That from the time of their ingi’ess into Texas until the death of the deceased, the said Tabitha and the deceased cohabited as man and wife, to whom children were born, and were reputed to be married, as must be presumed in favor of innocence where there is no evidence to the contrary, and as is show., from the empresario’s official report, in which they are ranked as man and wife, and as a portion of the married persons of the colony.
There was not, in law, any legal impediment to the marriage union between the deceased and the said Tabitha at the time of their emigration to the colony, or, at least, at the date of the grant from the government of Mexico. Four years had elapsed after the disappearance of the former wife before- the appearance of the deceased and the said Tabitha, as husband and wife, in this country, and six years 'before her right, by virtue of the marriage, to the land in dispute, began to accrue. The rational presumption, after this lapse of time, is, that the former wife was dead; her sister-in-law, being in charge of her only daughter, having not heard of her since the year 1818.
The ordinary presumption in favor of the continuance of human life should not, under the facts of the case, outweigh the presumption in favor of the innocence of their cohabitation, and that there was no legal impediment to their contracting the matrimonial relation.
"Where a woman was married within twelve months after her husband left the country, the presumption that she was-innocent of the bigamy was held to preponderate over the usual presumption in favor of the continuance of human life. [2 B. & Aid. 386; Shelford, 226.] .This author states that there is no strict presumption of law on questions of fact as to the-continuance of human life, without reference to accompanying circumstances, as the age or health of the party, etc. If the first consort be shown to have been alive within a short time of the second marriage, the law in favor of innocence cannot presume that the party was not alive at the actual time of the- sec-*450oncl marriage; and as an instance where the presumption of innocence cannot arise, he refers to a case where the first wife had been heard of twenty-six days before the date of the second marriage. [Shelford, p. 226, and cases cited.] This does not militate against the inference of innocence in the case under review, as four years' had elapsed after all trace of the former wife had been obliterated^ before the parties are presented within the limits of this country as man and wife; and this is the earliest period, or rather two years later, at' which there is any necessity for inquiry into the character of cohabitation between the parties, as the rights of the plaintiff and defendant depend on the fact of the existence of The marriage at the date of the grant,
There is no evidence as to the character of their intercourse in Louisiana, but on their emigration to Texas it assumes all the distinctive marks of the matrimonial relation, and the only argument which can be urged against the actual subsistence of the marriage relation, from and after that period, and the innocence of the cohabitation, must be founded on the supposition, that, as the intercourse was illicit at .its commencement, it must have always so continued.
But admitting that their original intercourse was illicit with the knowledge of both parties, it would be urging the presumption to an unreasonable extent, to suppose that the unlawful character of the connection was unsusceptible of change, and that, when all legal disabilities had ceased to operate, they would voluntarily decline all the honors, advantages and rights of the matrimony, and prefer an association disgraceful to both parties, but peculiarly degrading to the female, and which inflicted upon their innocent offspring the stigma and penalties of illegitimacy.
Let it be admitted that this woman had, knowingly, wandered from the paths of virtue, and that in the weakness of human frailty she had originally yielded to the arts and seductions of the deceased, yet the conclusion does not necessaiily follow that the latter would be unwilling to repair, as far as possible, the wrongs he had inflicted, or that the former would, of choice, *451continue in a position so humiliating, and which, if the defense to this action can be maintained, would not be superior to that of a slave ministering to the wants of a master and nurturing his son, and liable to be driven from herbóme without compensation for all her toils and privations encountered in the support of the family in the midst of the wilderness. The judgment which would presume that erring humanity would not repent and reform is too harsh to have place in any beneficent system of law, and we cannot yield our assent to any such doctrine. "When these parties emigrated, it was well understood in the colony that a married woman was entitled to one-half of all the property acquired by onerous title, during the existence of the marriage, and it is but a reasonable presumption that, even on this ground, the parties would assume the position in which this right could be secured. Had they not been generally regarded, during the whole period of their residence in Texas, up, to the death of the deceased, as man and wife, the fact could, doubtless, have been established with abundant facility. It was proven that they were not so regarded in Ohio four years anterior to their removal to Texas, and the character of their association in this country could have been, certainly, still more easily shown by proof.
All the circumstances lead to the conclusion of the innocence of the cohabitation of the parties in this country. The families on their arrival in the colony were required to accredit their good character and habits, and we must presume that this was done, and that the deceased and the woman, with whom he lived in continued intercourse, were duly certified to be man and wife; and that this was the case is manifest from the official census, in which they are classed as man and wife and a portion of the married inhabitants of the colony.
From the facts presented, we are of the opinion that the parties were regarded as man and wife during their residence in Texas; that no legal impediment, in point of fact, existed to their marriage for nearly four years antecedent to their immigration, and that the evidence is sufficient .to establish, for all the purposes of this suit, the subsistence of the marriage, and, consequently, Mrs. Harris is entitled to all the rights of the *452lawful surviving wife of the deceased. [Shelford, p. 99; 2 Starkie, p. 510.]
The next question is, whether the league of land granted under the colonization law of 1823 is to be regarded as community property, and, as such, subject to division between the surviving, and the heirs of the deceased, partner of the marriage?
This point involves important principles and a large mass of the most valuable lands of the country; and it is to be regretted that, under the circumstances, we cannot give the subject that thorough examination it eminently deserves.
There is, in one respect, a distinction between the character of the grants under thé colonization law of the empire and those under the subsequent laws of the state. In the former, there does not appear to have been any price in money fixed, to be paid for the land itself as the consideration, or one of the considerations, for the grant; and it has been contended that the grants under the former were pure donations, and, consequently, the separate property of the head of the family to whom the donation was made.
In opposition to this view, it has been urged that the land was acquired by onerous and not lucrative title, and this, principally, on the following grounds, viz.:
1st. That the commissioner’s fees, office fees, stamp paper, surveying fees, etc., amounting to a considerable sum, were required by law to be paid before' the colonist could be put into possession of the land.
2d. An onerous condition, of cultivating the land within two years, was attached to the grant, and it should, therefore, be deemed a recompense for services rendered by the matrimonial community, and as their reward for settling up the wild and uncultivated wastes of a new country.
Let us inquire, as preliminary to an examination of these positions, of what the community property is composed. In the “ El Dieeionario de Legislación ” it is defined to be such as the husband and wife, or either of them, during the matrimony, shall acquire by purchase or by their labor and industry; also, the profits of the separate property which each *453brings into the marriage, and also the profits of that which each shall acquire, by any lucrative title, during the continuance of the conjugal partnership [p. 272]. This definition is founded upon the laws in Tit. 4, lib. X, Novissima Eecopilacion. Where property is acquired in the name of both partners it becomes common, whether the accession be by gift or purchase; but when received in the name of one, whether it should be classed with the separate or the community property will depend upon the character of the title. If this be onerous, the property is ranked with the gains of the community; if lucrative, it belongs to the separate property of the partner who is the beneficiary of the gift.
An onerous title is defined to be that by which we acquire any thing, paying its value in money, or in any other thing, or in services, or by means of certain charges and conditions to which we are subjected. [Diccionario, p. 672.]
It will be perceived that, although there is no price fixed by the law for the land itself, yet there is no provision that the land shall be given and the titles extended gratuitously, as was authorized in grants of a particular character under the decree of the Spanish cortes of the 4th January, 1813.
There being no requisition that the grant should be wholly gratuitous, the payments on land titles were left to the regulation of the proper authorities, and their amount was fixed at one hundred and sixty-five dollars [see Austin’s Pamphlet, p. 20, in note], which was to be discharged before the execution of the title. The grant itself contains a recital that the title will issue on payment of the fees designated in the fee bill, promulgated by the political chief of Texas on the 20th May, 1824.
It would seem that where the government requires, by public order, a sum of money so considerable in amount to be paid before the issue of the title, and as an indispensable condition to its delivery, that the grant could not be justly regarded as a pure donation. Nor can it be regarded as bought with the separate funds of the husband. There is no provision of law which requires or authorizes the separate property of the head of the family to be expended for this purpose: and, where there is no *454showing to the contrary, the presumption always is that the advances proceed from the funds of the community, and purchases are made for its benefit and augmentation.
The fact that the grant was made to the head of the family is an immaterial circumstance, provided it was founded on considerations which impress upon it the character of a purchase, or of property acquired by onerous title.
The headright grants under the state colonization laws, in which some consideration was paid for the land itself, were made to the heads of families. And if, by law, lands were expressly directed to be sold to families, to a greater or less amount, according to the merits and circumstances of the applicants, and the grants were made in the name of the heads of the families, it could not be contended that such lands were the separate property of the husband. Is there any substantial difference between such sales and this grant, where the title was, by public authority, directed not to issue until after the fees were paid? But, on the second ground, we are of opinion that the grant was in consideration of services to be rendered, and should, therefore, be regarded as a portion of the ganancial property of the marriage. The object of the government in the law of colonization was to settle the vast wilderness of a remote frontier with a reputable, hardy and industrious population. “ Agriculture, industry and the arts ” were to be promoted, and, to accomplish this, grants of a large amount of laud were offered to emigrant families, but not gratuitously; not simply on the ground that they would introduce themselves into the country; but that they should cultivate the lands, and that within two years from the date of the concession. The inquiry then arises, by whom is this to be accomplished?
Are we to suppose that the husband is the sole cultivator? That fields are to be opened, and lands stocked with cattle, without the assistance of his partner, and the expenditure of their joint funds? And, in fact, it seems immaterial whether the whole of the labor and money be bestowed and expended by the husband or not, provided such was the necessary condition and charge by which title could alone be originally ac*455quired or subsequently preserved. By the principles of the law then existing, the results of the labor of the partners, and of each one of them, became common property. It is of no consequence whether one contribute more than the other to the acquisition, or whether it be procured by the labor and traffic of one alone, it is common to both by virtue of the subsisting partnership, through which their acquisitions are reciprocally communicated. [Diccionario, p. 73.]
The position is fallacious which assumes that the land is already granted, and that the labors of the wife are repaid by her community interest in the value of the improvements made, or cattle pastured on the land.
If the land can be retained only by services to be rendered oi labors performed by both of the partners or by one, and the profits by law accrue to both, it would be inequitable that the labors of the one should be rewarded by the land and half of the improvements, and that of the other by only half of the latter. To this she would be entitled on property brought by the husband into the marriage as his separate estate, and of which the title was fully vested in him, and to procure or preserve which no expenditure of labor or money is necessary; but where these expenditures and services can alone procure and secure the title, she should certainly be entitled to an equal share of the reward bestowed. These grants were, in fact, dearly purchased by the unparalleled toils and sufferings of both the partners; and the fruits of their labors, under a system of laws where the community interests are protected with such jealous vigilance, should be equally distributed.
It cannot be said that if the land be not appropriated exclusively to the husband, each member of the family is as much entitled to a distributive share as the wife, inasmuch as the services of the whole are rendered to secure the title. This is answered by the consideration that, under the laws, the services of the family are always to be rendered for the benefit of the community, and not for its individual members, especially those in a subordinate relation. The law was framed to secure the migration of women as well as men. Their presence was indispensable to the domestic happiness of *456individuals, and to the order, welfare and continued existence and prosperity of the colony.
It cannot be supposed that a legislator, under the Spanish system, would intend that in a grant to be made to a family, consisting of a husband, wife and children, and this on onerous conditions, that the rights of the wife, as partner in the. conjugal society, should be disregarded. The presumptions of 'law strongly favor the rights of the community, and they should have their due force where the law is not too clear to exclude their operation.
'Without discussing the subject further in the present case, we state our conclusions to be that the grant cannot be regarded as a pure donation, and that the land constitutes a portion of the common property of the former conjugal partnership between Mrs. Harris and the deceased, John Jiams, senior.
The admission of the deed to the plaintiff, as evidence,, should have been excepted to at the trial. The deed is not invalidated for the want of record in the proper county, but is only divested of its legal effect as'against third'parties who have had no actual notice of its existence. [Crosby vs. Huston, 1 vol. Texas Report.] This could not be alleged by the defendant, if even he were claiming under a junior deed from the same grantor, as the evidence proves to the contrary. The operation of the 8th section of the act concerning conveyances,, [Laws of 1840, p. 155] is prospective, and does not affect the admissibility of a decree in partition, rendered before the passage of the statute.
The plea of prescription cannot avail the defendant. There was no possession by either party. This was attempted by the plaintiff, and, by mistake, some tenants of the defendant were, ousted from the other half of the league, and the possession retained from 1840 to 1843, from which time there does not appear to have been a possession, actual or attempted, by either party, of the land in controversy.
■ It is oi’dered that the judgment be affirmed.